River law update: Charlottesville angler gets a day in court
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Dargan Coggeshall and his brother-in-law, Charlie Crawford, were charged with trespassing for fishing on the Jackson River.Photo courtesy Dargan Coggeshall
Back in January, the Hook profiled local angler Dargan Coggeshall, a Charlottesville business owner and long-time fly-fisherman, who was being sued for fishing in the Jackson River in Alleghany County. Now he's had a day in court.
In 2010, nearby property owners took issue with Coggeshall and his brother-in-law for wading in the river in front of their homes, claiming the riverbed along the The River's Edge development was private property, granted via a long chain of documents including one issued by the King of England in 1743. The property owners had the two waders arrested for trespassing. While an Alleghany District Court judge dismissed the criminal case, the owners and their developer moved forward with a civil lawsuit seeking $10,000 in damages.
Coggeshall, however, would fight back, spending $50,000 of his own money for legal aid and creating the Virginia Rivers Defense Fund, a non-profit to defend himself and other river users against what he views as over-reach by the folks at The River's Edge.
The website for The River's Edge– where a weekend cottage can cost over half a million dollars– depicts a fly-fisherman in action and promises both "the finest wild trout-fishing on the East Coast" and "the exclusive benefit of private river frontage." But as Coggeshall sees it, this is a fight to preserve the rights of all fisherman and other river users to freely access the state's waterways.
On May 4, he and his defense team got a chance to argue their case. Alleghany Circuit Court Judge Malfourd Trumbo heard arguments for and against a motion brought by the property owners that would declare them legal owners of the river bottom. While a ruling wasn't immediately handed down, Coggeshall was encouraged by Trumbo's knowledge of the issues and line of questioning.
For instance, according to Coggeshall, Trumbo recognized that the Crown Grant made no references to a transfer of the actual riverbed, and that the subsequent Commonwealth Grant, made in 1785, referred to parcels on either side of the river, but not the river bottom between them. Trumbo also took the wind out of the property owners' argument that they had rights to the land because they paid taxes on it.
A phone call to the Alleghany County assessor's office reveals that riverside property owners are taxed on river-bottom land extending about half-way across the river.
"The judge opined that the paying of taxes on land has nothing to do with determination of rightful ownership," Coggeshall writes on his blog, "and advised the Plaintiffs that this argument would not have much sway."
"Pretty damning to the bad guys," Coggeshall tells the Hook.
The lawyer for the property owners, Roanoke attorney James Jennings, declined to comment on the case because the judge's ruling is still pending. However, Jennings has previously made it clear that it's a case of Coggeshall and his brother-in-law wading on private property.
"This is not a fishing case. This is a trespassing case," he has told the Hook. "These men were walking on the river bottom, and my clients own the river bottom."
Coggeshall says he was disappointed that the judge, the two legal teams, and a court reporter were the only ones attending the hearing in Covington.
"It's unfortunate, considering the magnitude of the potential impact this case will have on the state’s public recreational and natural resources," says Coggeshall, "that no one showed up to hear the arguments in person."
Coggeshall hopes there's a better crowd at the trial this fall. A ruling by Trumbo on the May 4 motion is expected in about a month.
30 comments
You better believe if Coggeshall owned the land and he was being sued he would be on the other side of the argument
huh, rich people suing each other, glad our courts are wasting time & money in serious issues like these
So if the property owners contention is that under the law they can float down the river but not wade then does that mean their fishing lines cannot touch bottom if they were in a boat? Does that mean that if they were in a boat they could not drop anchor?
They way I read the law about navigable waters means just that... any water that is "naviagable" is considered public. Whether you scubadive and touch the bottom is irrelevant.
Do these owners believe that they have a legal right to build a low bridge that impedes canoes also?
I am all for property rights but these peoples selfishness is as bad for america as any welfare queen.
If they do win I hope the game warden responds to their call they way he does when we have hunters tresspassing and says he will be there in a "couple of days"
There are several river access points on the Jackson. I don't think it is unreasonable to say that you have to stay in your boat and not come up on shore. This is an important safety issue for families with small children. I don't want strangers in my back yard.
The argument isn't about coming on shore. It's about standing on the bottom.
I can assure you that the Charlottesville angler isn't wealthy. He works with kids who have learning struggles. The Virginia Rivers Defense Fund was set up to help cover the legal costs of defending against the seizure of a public river. I can also assure you that this issue impacts all Virginians (and even those who visit Virginia for our natural resources) who use our water courses. If this case breaks the wrong way, any riparian landowner can approach anyone using a river and threaten to sue them for touching the river bottom (with oar or lure or anchor or foot) based on a claim of a King's grant. How many users will contest that claim and take on the liability that this Charlottesville river user did? (Heck the state won't even do that.) Our public rivers will become strewn with virtual cables, a patchwork quilt of where people feel comfortable fishing, hunting, swimming and paddling, and where they're afraid to go for fear of being sued. Coggeshall didn't leave the river, he was just doing what the state sold him a license to do and told him where he could go to do it. Check out this current map on the VDGIF website today, it clearly tells all river users they can wade fish in the area where Coggeshall is being sued (Smith Bridge to Indian Draft float).
http://www.dgif.virginia.gov/fishing/waterbodies/reports/jackson-river-t...
This is Ken Cuccinelli's fight to wage, yet he won't enter the fray because of political reasons (aka large donors). It is a sad day when our citizens can be sued for following all regulations put out by the state, yet the state won't stand up for those directives. This could happen to any commenters on this board, or their children or grandchildren.
The owners went so far to have two fisherman arrested and the Police State went along with it , How nice . I hope this info was passed along at the RIVERFEST in Waynesboro this year .
Anglers ,it looks like fishing is no longer just fun and games, time to step up and support Mr. Coggeshall as his interest is in all our best interest. But wait, he is rich so his liberties should be less than ours some may say . Not me , Thank God he can defend himself as the Police State bank on those who cannot. The rich guy is defending us all who enjoy the rivers .
Sounds like it's time to make this fishing spot also a good place for a RIVER BASH .
There is more than one way to skin a cat Mr. Property owner .
Unfortunately, this issue was addressed in Boerner v. McCallister, 197 Va. 169, 89 S.E.2d 23 (Va., 1955) and the Supreme Court of Virginia ruled with the landowners. My dad handled the case with co-counsel Roscoe Stephenson, later on the Supreme Court himself. It's a very rare and narrow exception to the general rule and my sympathies are with those who fish.
Thanks Ross Hart. Roscoe Stephenson represented the defendants in their criminal trial (which was dismissed in Oct 2010). I wish this was a rare and narrow exception, however, most of the riparian land east of the Blue Ridge (and maybe even east of the Alleghany mts) was originally granted to cronies of the King. Users of the Cowpasture and the Rapp are also being run off by those claiming to have a Kings Grant. This is a ticking time bomb for the state b/c they don't know even how broad or narrow this is. Mark my words, someone is going to get shot over this kind of ambiguity and confusion. A legislative solution is needed, but if the anglers don't win, legislators will slink away from this issue. They must win to embolden lawmakers to make clear laws.
Here is some interesting reading about the issue
http://www.nelsoncountyva.org/BoatingStreamRights-sr101980.pdf
The case in question did not settle the matter, it merely dealt with a specifc issue while intentionally ignoring others.
If the state stocks a river then the landowner would unduly riched by stopping fisherman.
Albemarle county has joined the Cheasapeake Bay foundation and now has intense zoning regulations within the watersheds which takes away landowners rights within 100 feet of the waterfront and did so without compensation, so the government has crossed that threshold of landowners rights.
It does seem like the legislature should fix this problem once and for all.
------Noting that there are many areas in the State of Virginga where the property lines extend to the centerline of State highways and the property owners have to pay taxes on that portion of the highway which is included as part of their land.
MY QUESTION IS THIS:
Does that mean that I would have the right to have any person who travels that Highway, either in a vehicle or walking, arrested for trespassing, I think not. If the judge goes along with this argument, then I think it would be only proper for the landowners on each side pf the above mentioned highways to put up no trespassing signs and close in and fence in their portion of the highway, thus bringing more such cases before an already overloaded courts system.
I do not believe anyone on either side of a road or river has any control over that entity other than in the case where a person comes onto, litters or damages the private property, on either side, irregardless of where the property line is located.
Bill
Thanks for the update on this issue, haven't read about it anywhere else.
Two private property owners at The River's Edge are suing two fishermen who relied on maps issued from the state Department of Game and Inland Fisheries. One of the property owners is Matthew Sponaugle, who owns the company developing The River's Edge and also manages the adjacent Cliff View Gold Club and Inn; the other is Roanoke surgeon John Feldenzer (whose wife shot video of the "trespassing" fishermen). As The Roanoke Times report, the Feldlenzer's "primary residence is in Roanoke County."
Go to The River's Edge website and Sponaugle touts "private river frontage" along with publicly-owned "area attractions" like the George Washington National Forest, Lake Moomaw, and Douthat State Park. Feldenzer, the surgeon, got his medical education at the State University of New York (the Feldenzers give their campaign contributions to Republicans.)
As reported elsewhere, "In 2009, the VDGIF began receiving complaints from anglers that an apparently public section of the river had been posted as private; the department investigated and confirmed the presence of signs stating that fishing and wading for any purpose was strictly prohibited in that area by The River’s Edge. In June 2009, the department sent a letter to Matthew Sponaugle—owner of North/South Development, which in turn owns The River’s Edge—that said:
1) All river beds deemed navigable are the property of the state unless otherwise conveyed.
2) The 1996 court case of Kraft v Burr did not apply to the section of the river he had posted.
3) While members of The River’s Edge may have special limitations imposed on them while they were fishing the river, these limitations could not be imposed on the public."
See: http://midcurrent.com/conservation/will-the-jackson-river-become-privati...
And, "Property owners who wish to apply for a variance must do so with the Virginia Marine Resources Commission (VMRC) because the VMRC has jurisdiction over all the Commonwealth’s submerged waterways. And yet when asked about a variance for the River’s Edge property on the Jackson River, John Bull, the direction of public relations for the VMRC, who insists that the commission would be the 'first stop in ascertaining the validity of a King’s Grant claim,' also stated that the commission had not received any documents from anyone attempting to establish such a claim over the disputed property."
Sponaugle and Feldenzer rely on the claim that they have a "Crown Grant" to the land and the river bottom, although why such a grant should carry any weight today makes little if any sense. But it's doubtful if they actually have in possession a copy of that "grant."
The story and the comments at the link below are worth the read. And yes, the politicians (Creigh Deeds and Ken Cuccinelli among them) are abdicating their responsibility. As one commenter noted, " How small minded and selfish is this Sponaugle that he feels he should own the passage in that section of the river."
http://www.orvisnews.com/FlyFishing/Public-Access-for-Anglers-in-Jeopard...
The landowners are fortunate that the fishermen do not take revenge by running Seadoo's in circles in the river fronting their property.
What if a bunch of Wounded Warriors decided to wade fish there, in search of healing and supplementing their diet. Would the River's Edge landowners have them arrested for trespass. Imagine being arrested for using the very ground you risked life & limb to defend. Shame on greed. Keep Virginia River Free!
For a property rights attorney and novice fly angler, these are fasinating arguments and, putting emotions aside, it is possible to be sympathetic to both sides of the case in question. From a property rights standpoint, the landowners' position is probably legally correct, however compelling the anlgers' story.
But who has the rights to fish? The Boerner case, like this one, was about trespass. The deeds, in some cases which date back to the Kings grants and however seemingly anachronistic, must determine the ownership, and therefore whether someone may set foot (or anchor?) on land privately owned. But the Boerner case did not confer exclusive fishing rights to the landowners. That is why navigability is important. In a 1980's case, Loving v. Alexander, it was settled that the Jackson river was a navigatable waterway. This was a setback for landowners and a boon to the trout and fishing guide industry.
If this was a spring creek, would there be any doubt about the landowners' claim? No. But because the Jackson is navigable, the rights of the public intersect with the private rights of the landowners. How to reconcile these rights and interests? The main point is that the fish, the browns, rainbows, muskies, do not belong to the landowners. They belong to the Commonwelth of Virginia (Commonwelth, here meaning the public, the taxpayers, and not necessarily the State). That is why catch and release should be, if not the law, intuitive.
There are actually landowners who may claim that b/c the kings grant in their deeds includes the 'fish and fowl' in their conveyance that the fish too are part of their domain. This cannot be sustained. Why? Consider that before the Cathright Dam, the Jackson was unsuitable for the species that are making this area one of the best fly destinations on the East coast. The dam was a project built by the Army Corps, the Commonwealth and funded by us the taxpayers. The stocking of the Jackson and other public waterways are supported by the public fisce. Therefore, the public rights to recreational fishing cannot be impeded by private landowners -- on navigable waters.
So, where does that leave us? We anglers may be restricted from wading in areas that are privately owned, but we can respect that. I have floated the Missouri river with guides who were capable of rowing upstream to go back over 'honey holes' that we missed a strike, without having to anchor. In areas where there was public access, we waded, or dropped anchor. That is part of the value of an experienced guide who not only understands the water, the habitiat, but also respects private land owners' rights. [This seems to be more accepted in the West for some reason.]
The lesson of the Coggeshall case is that the anglers have the opportunity to preserve and sustain a wonderful resource ---one that did not exist at the time of the Kings grant -- cold water, trout fishing. But to preserve this unitque resourse, we must respect private land owners' interests just as we seek to protect the environment and habitat that sustains this wondereful resourse.
Steve, the big problem is that how do river users know what rivers, sections of rivers, sides of rivers are private and which ones are public. The anglers in this case followed all state published maps (which encouraged wade fishing of this public river) & regulations, yet are being sued. If they had simply rolled over (intimidated by the threat of litigation), the facts concerning who owns the river bed would never have been forced to light. Today, in the Commonwealth of Virginia, any riparian landowner can sue any river user for trespass if they have "color of title", which means their property was part of an original King's Grant and they have the river bed referenced in their current title. The way the courts look at it today, the burden is on the user (who is charged w/ trespass) to disprove the claims being made by the riparian land owner and prove there is a break in the chain of deeds, which would mean that property is subject to the Va statutes that prevent river bottom from further conveyance. Practically speaking, any landowner can claim they have a grant that is exempt from the statutes and sue for injunction whether they have it or not. Most folks will fold, rather than incur expensive litigation and research, and that riparian land owner has virtually strung a cable across their section of the river. No one will use it for fear of being sued. If this case breaks the wrong way, many more riparian land owners on many more rivers will pursue this civil tactic to privatize the river stretch in front of their land.
Legislation is what is needed to preserve and sustain the access and use of the resource. I hope the effective fishing of our rivers doesn't come down to only those who can afford to hire a guide who will back row to keep them on a hole or in a run. Most folks have to anchor their kayak or get out and wade to fish a spot properly.
Steve Blaine's comment is interesting reading, but he ends it with this:
"to preserve this unitque resourse [sic], we must respect private land owners' interests just as we seek to protect the environment and habitat that sustains this wondereful resourse [sic]."
Which means what, exactly?
I wrote this in an earlier comment:
"Sponaugle and Feldenzer rely on the claim that they have a "Crown Grant" to the land and the river bottom, although why such a grant should carry any weight today makes little if any sense. But it's doubtful if they actually have in possession a copy of that 'grant'."
Frankly, I remain puzzled, and perhaps the lawyers can clear it up. Why does any court take a "Crown Grant" at face value as "proof" of land ownership? DId the king of England really "own" the land he "gave" away? What constituted "proof" of the king's ownership? After all, the king never saw or set foot on the land he allegedly owned, and his claim to "ownership" was only one of many such claims.
Yeah, yeah, I know. The colonies, including Virginia, were part of the British Empire and operated under the laws of king and Parliament. But that rule was rejected during the American Revolution. And, indeed, a very significant portion (in all likelihood, most) of the Tories who had their land and assets confiscated by colonial revolutionaries never receive any compensation for their losses even though that was written into both the Treaty of Paris (1783) and the Jay Treaty (1794). So, why does a "claim" to a "Crown Grant" now carry any weight whatsoever?
Moreover, the land that the colonists "claimed" (and took) never "belonged" to them in the first place.
I think the commenter I cited earlier is right. Sponaugle and Feldenzer are "small minded and selfish" in trying to essentially control "passage in that section of the river." And by the way, there are plenty of other people just like them who would like ratchet their convoluted notion of "property rights" up another notch, or several.
Perhaps this helps to explain why Ken Cuccinelli is keeping this issue at arm's length.
The state should :
a) define 'naviagable waters" as any waters that can be naviagted by a canoe without running aground.
b) eminent domain all "land grant" river beds and offer the owners 2000 an acre or let the ones who don't want that fight for more.
c) define the USE of "navigable waters" to include wading, only if the land in question meets the definition described in "a"
The landowners won't like it but it solves a lot of future problems and safety issues. After all it is only a mtter of time before a fight breaks out and a "trespasser" is shot on;y to find out the chain of kings grant title canot be proved and the state has to prosecute etc etc.
This is what legislatures are for. Too bad they are too busy having long lunches.
I don't really understand why this is even in court like this when they used maps given by the State where it says wading is permissible. Let the landowners take on the State, and see where it gets them. It would be nice to see what happens then, because even Cuccinelli can't change the law.
Mallarcky Webster52. Put up a fence if you don't want people on your backyard. The river is no different than a road, and that's the whole point. You have a property going along next to a highway, and you don't want people walking across it, you put up a fence and a no trespassing sign. You can't tell someone they can't get out of their car and check the oil by the side of the road because its supposedly private property, or in the road, for that matter. That's what's so stupid about this whole case.
I hope these landowners and the subdivision manager get slapped back to last Sunday for their pains.
Yes, the landowners' beef is with the state, but no one ever wins suing the state, so they chose these anglers (and their pastor, but dropped him from the suit when they realized it wasn't popular from a PR perspective to sue a pastor), probably just hoping the fishermen would fold and the property owners would get their injunction the easy way, locking out everyone. But these citizens didn't fold. As rediculous as this case sounds, it is very real and the river users have run up huge debts fighting for all of our rights to use our state resources. No amount of emails to Cuccinelli is going to help. He has picked his side. Cash for the defense fund is what helps, so these guys can afford to fight the case. If they run out of money, the truth never gets heard and the legislators won't pass any legislation to clarify these issues, because they won't pass laws that fly in the face of recent/current court decisions. Go to www.virgniariversdefensefund.org/donate and give something. Only one opinion really counts, and that's the judge's. Anyone know if this article will run in the print pub?
The Landowners beef is not with the state. The courts ruled in their favor regarding their property rights. Their are public accesses to the river where folks can launch their canoes and wade into the water to fish. Plenty of people float by everyday and obey the rules and their are no problems.
Webster52, this is the official VDGIF map posted at the kiosk of the public put-in and on the state website TODAY!
http://www.dgif.virginia.gov/fishing/waterbodies/reports/jackson-river-t...
It clearly states the rules, which the anglers obeyed to a "T." Yet, the rule-following anglers are being sued for $10,000 in damages (b/c of irreparable harm to the marketing of the private river's edge development) and have run up tens of thousands in legal bills..."obeying the rules." Why is the state not involved, defending the anglers it promoted to wade fish a state river? Why is the landowners' beef not with the authority who sold the licenses to the anglers, built the dam and put-ins, put up the maps, promoted the fishery, stocked the fishery, managed the water quality? What courts ruled that the developer owned the river bed? Maybe I'm missing something, but your argument isn't rational.
TakeTheFly, makes an excellent point . Very simple to understand. If it was posted & they did not obey it, they were in the wrong.
Thomas k... posting does not make it so.... anyone who lives along a river could "post" and many people would be denied use of rivers that belong to the citizens.
So if someone is tubing down the river and you cannot tell whether or not their feet are touching the bottom but "think" they are then what you have is an "imaginary" slight" no different than if someone used the word "nagger" to describe his black boss. If they can float over the land on state water and touch the bottom with their feet there is no distinguiishable difference to the landowner because he can only see from the water level up. It is similar to a neighbor flying a kite over his property and the tail of the kite touching leaves at the top of a tree but doing no harm.
Basically, the developers KNEW they were on shaky ground with the land grant theory as the court case was not as specific as they claim and if the court rules in the favor of the anglers the developers have not been "harmed" any more than someone would be "harmed" if they thought that they had bought a first edition book without having it PROPERLY authenticated before purchase. The developers are simply attempting to enrich themselves at the expense of the citzens. The legislature needs to fix this not the courts. Find someone who is up for releection and let them make hay about this.
Perhaps the state billing the landowners for taking care of their riverbed might make them think twice about being so stingy. I would imagine if you calculated what it costs to jeep a river clean and divided it by the footage of the shoreline it would come to a tidy sum.
Good suggestion Bill, to bill the landowners for river maintenance.
I don't get where Webster52 comes off with the courts ruling favour of the landowners. They threw the trespassing out of court.
he bill, apparently you cannot read... I said " If it was posted & they did not obey it, they were in the wrong." IF, IF, IF... understand?
"Coggeshall says he was disappointed that the judge, the two legal teams, and a court reporter were the only ones attending the hearing in Covington."
We live in Alleghany County, chose to retire here in part for the Jackson River fly fishing, and have been trying to follow this case closely. We are ordinary people and don't live on "The River's Edge." One of us would have been in court if we had known the May 4th hearing date, my husband did attend earlier hearings. However, our local papers have not covered this. My guess is that it has to do with real estate advertising. The Rivers Edge is heavily promoting their $100K+ building lots to the influx of summer people, and they are still promising over a mile of private fly fishing water. Having floated over this section of river with our rods, we have been warned that both the locals and the new residents believe they own the river bottom, the water and the fish! This is a disaster in an area that has nothing going for it except for its natural beauty and tourism.
This suit is especially interesting because these same people chose NOT to participate in the Kings Grant lawsuit of the 1990s. They are excluded from that ruling. But they post more "No Trespassing" signs on that river than anyone upstream. Whether you agree or not, the famous Kings Grant lawsuit was fought out in the courts, and those dozen landowners on that specific three mile stretch of the Jackson won. The owners downstream from them have not fought for and have not won the right to put up any signs. They are trying to sneak in the back door, and it appears that Mr. Cuccinelli, DGIF and the newspapers are going to let them.
Interesting isn't it that very few people/groups, who on the surface, should be supporting the anglers, lobbying the Attorney General, covering the topic, are the very folks avoiding it like the plague. For example, I would think Alleghany county needs jobs and tax revenue. A world-class fishery would support lodging, meals, services, etc. Yet Creigh Deeds sits on the fence. The Alleghany Chamber of Commerce and Alleghany Tourism Board should be doing e'thing they can to make sure their recreational crown jewel (The Jackson River) is usable by as many people as possible, but they are conflicted b/c of the developer being involved w/ Champber leadership or the development paying for advertising in tourism brochures. Why has the editor of the local paper not run an op/ed piece on the issue? Do the residents of Alleghany county not understand if this case breaks the wrong way, fewer and fewer people will come to their area to spend dollars. I know of dozens of outfitters who won't float that river with their clients because they don't want their clients being harrassed. This is the perfect opportunity for elected officials and representative bodies to say "we're open for business and welcome all," instead their silence says "we'd rather be penny wise and pound foolish."